A. INFORMATION AND CHARGE.
1. Vide the information dated 23rd November, 2022, Jared Otieno Otieno, the accused person herein, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya.
2. It is alleged in the particulars of the offence that on diverse dates between the 9th and 10th days of November, 2022 at Nyalenya village, Muhoroni Subcounty within Kisumu County, the accused person murdered Caroline Aoko Onyango.
3. The accused person denied the charge and a plea of “not guilty” was entered, following which his trial commenced.
B. THE PROSECUTION CASE.
4. The prosecution called a total of eleven (11) witnesses.
5. The first prosecution witness (PW1) was Musa Opamo. The witness testified and told the court that he was a resident of Chemilil area in Kisumu County and worked as a casual labourer.
6. PW1 testified that on 9th November, 2023 at about 10.30 p.m., while at his home, he heard people talking near his residence. He moved closer to the source of the voices and recognized one of them. He proceeded to the place from which the voices emanated, where he found the accused, Obuya, together with his wife, Carolyne. He stated that Carolyne was seated while the accused was standing.
7. The witness told the court that Carolyne was dressed only in a petticoat. He therefore asked the accused to go and get her some clothes. After some time, Kennedy Omondi, who was his neighbour, arrived at the scene. PW1 then returned to his home and went to sleep. The following morning, he received information that Carolyne had died.
8. PW1 further testified that Carolyne used to sell him goods on credit. He stated that when he found her seated at the scene, he did not observe anything unusual on her body. He also told the court that he had no dispute with the accused, who had recently moved into the neighbourhood and constructed a house there. He did not know the accused’s full names. His home was approximately 45 metres from the place where he found the accused and Carolyne.
9. In cross-examination, PW1 confirmed that he heard the noises at about 10.30 p.m. and that his house was situated at a corner, approximately 45 metres from the accused’s house. He stated that at the material time he was on a road near a sugarcane farm. He reiterated that he found Carolyne seated and half naked, wearing only a petticoat. He further stated that Carolyne told him that it was the accused who had undressed her. PW1 explained that the scene was situated between his home and that of the accused and that it was because Carolyne was dressed only in a petticoat that he asked the accused to get her some clothes.
10. The second prosecution witness (PW2) was Kennedy Omondi. He testified that he was a casual labourer and a resident of Chemelil. He stated that on 9th November 2022 at about 9.30 p.m., he had gone to a shop approximately 100 metres from his home to buy foodstuff. On his way back, he met the accused, Abuya, and his wife, Carolyne. As he approached them, they got up and proceeded to their house.
11. PW2 testified that at about 10.30 p.m., he heard some noise and proceeded towards the direction from which it came. He found the accused and Carolyne fighting. When he asked them what the problem was, the accused told him not to involve himself in their family affairs. PW2 nevertheless observed that the two were standing and striking each other with canes or sticks. He attempted to intervene and talk to the accused, but the accused refused to listen and again told him not to involve himself in their affairs.
12. The witness further testified that he encountered PW1, Musa Opamo, also known as Ngurunguru, at the scene. He stated that PW1 remained at the scene during the fight but subsequently left. PW2 also told the court that his house was approximately 10 metres from that of the accused. He recorded a statement at Chemelil Police Station after his name was mentioned to the police. He stated that he did not know who had mentioned his name as he had been away undertaking his casual work.
13. During cross-examination, PW2 stated that he had met the accused and Carolyne at about 9.30 a.m. while they were heading towards their home. He clarified that he heard the noise at about 10.00 p.m. and, upon reaching the scene, found PW1 there. He confirmed that both the accused and Carolyne appeared to be drunk. He further stated that it was the accused, and not Carolyne, who told him to leave them alone. PW1 left the scene first, and PW2 left approximately five minutes later. At the time he left, both the accused and Carolyne were alive. He stated that the two were using sticks in the fight and not wooden plant stems.
14. When shown some sticks contained in a sack, PW2 stated that he could not tell whether they were the same sticks which the accused and Carolyne had used during the fight.
15. The third prosecution witness (PW3) was Patrick Owiti Oketch. The witness testified that he was a farmer and the village elder of Kamwara. He stated that on 10th November, 2022 at about 8.00 a.m., while at the shopping centre, he received a report from Teresa Achieng that something had happened at the home of the accused, Jared Otieno Otieno. He proceeded to the homestead where he found Carolyne, the accused’s wife, lying on the ground.
16. PW3 testified that there was a crowd at the homestead and that those present informed him that Carolyne was dead and that she and the accused had fought the previous night. He left the house together with about four persons who were present and, outside the house, they came upon a muddy area bearing visible signs of a stampede. They also found several sticks at the scene.
17. The witness stated that he thereafter called Jacob Ongadi, the Assistant Chief, who arrived at the scene accompanied by police officers. The police took Carolyne’s body to Ahero Mortuary, while the accused was arrested. PW3 further testified that he had known the accused for some time as they were from the same village and that, at the material time, the accused was within the homestead.
18. PW3 was shown a number of sticks contained in a sack and identified them as the same sticks that he had seen at the scene. He explained that the sticks were wet when he first saw them but had since dried. The sticks were consequently marked as PMFI-1.
19. PW3 further testified that upon observing Carolyne’s body, he noticed cuts on her back.
20. In cross-examination, PW3 stated that he arrived at the homestead shortly after 8.00 a.m. and that the shopping centre was not far from the scene. He acknowledged that he could not tell where exactly the incident had occurred or whether the sticks he found at the scene had been used in the commission of any offence, as he had not been present when the alleged offence was committed. He nevertheless maintained that the sticks produced in court were the same ones he had seen at the scene. He conceded that there was nothing unique about the sticks.
21. The fourth prosecution witness (PW4) was Jacob Omondi Ogadi. He testified that he was the Assistant Chief of Sidoh East Sub-location and had served in that capacity for 23 years. He stated that on 10th November, 2022, he received a telephone call from his colleague, Bernard Okoth Ongadi, informing him that someone had killed his wife along their common border. PW4 thereafter contacted Patrick Owiti Oketch, one of the village elders, who confirmed that a woman had been killed.
22. PW4 testified that he contacted officers at Chemelil Police Station, who informed him that they had already received the report. He proceeded to the scene and was joined by police officers from Chemelil Police Station. Upon arrival, he found the deceased, Carolyne Aoko, lying on the floor of the living room in the home of the accused, Jared Otieno. The accused was also present in the house.
23. PW4 further testified that the accused was questioned by himself and the police officers and subsequently led them to a place approximately 20 metres from his house. According to PW4, the accused indicated that it was at that place that he had been beating his wife. The village elder and members of the public were also present at the scene. PW4 stated that he found a bunch of sticks at the place which, according to him, were the sticks used by the accused to beat the deceased.
24. The witness stated that when they returned to the house, they found the deceased’s clothes, namely a t-shirt, skirt and biker, stained with blood. A leso was also bloodstained. The accused was arrested and taken to Chemelil Police Station, while the deceased’s body was removed to the mortuary.
25. PW4 identified the accused as one of his residents. He testified that the accused and the deceased appeared to have had a good relationship and would ordinarily go to the market together. He stated that he had never received any complaint concerning the couple. He further testified that the accused did not disclose to him the cause of the fight.
26. PW4 was shown a number of photographs which he identified as depicting the sticks he had seen at the scene. The photographs were marked collectively as PMFI-2.
27. In cross-examination, PW4 acknowledged that he was not present when the fight occurred. He stated that the accused had admitted to beating his wife. He further acknowledged that there were other sticks lying on the ground and that some of the photographs depicted different areas of the ground, including a stick lying in a napier plantation and another photograph showing churned ground.
28. PW4 confirmed that he had not been shown the deceased’s clothes in court. He maintained that the accused and the deceased had enjoyed a healthy relationship. He added that although the accused was a heavy drinker, the deceased was not.
29. The fifth prosecution witness (PW5) was Jared Otieno Opiyo. He testified that he was a farmer and preacher residing in Sidoh East 2. He stated that on 10th November, 2022 at about 5.30 a.m., he heard dogs barking and was informed by one of his children, Merisa Adoh, that there was a visitor outside. He went outside and found the accused, Abuya, who requested him to assist in taking his wife to hospital at Catholic Awasi.
30. PW5 testified that he informed the accused that his vehicle had no fuel and requested Ksh.2,000/- for fuel. The accused stated that he had no money but undertook to obtain some thereafter. PW5 nevertheless took his vehicle and accompanied the accused towards his home. On the way, he asked the accused when his wife had become ill.
31. According to PW5, the accused told him that on 9th November, 2022, he and his wife had been returning from work on a motorcycle and that his wife had been entrusted with money for payment of workers. They had gone to Nyakunguru Centre, where his wife left him at about 8.30 p.m. The accused stated that he returned home at about 10.00 p.m. and did not find his wife there. Upon enquiring from his children, he was informed that she had not returned home.
32. PW5 further testified that the accused told him that he went out to look for his wife and, having heard her voice, approached her but found that she could not speak. The accused allegedly stated that he thought she was pretending and consequently took a stick and beat her, but she did not respond. He further told PW5 that at about 5.00 a.m. he saw a person passing by whom he called upon to assist him in carrying his wife to the house. The accused also stated that he suspected that his wife had been attacked and raped.
33. PW5 testified that upon reaching the accused’s home, he found the deceased lying on the ground, covered in blood and mud, and covered with a blanket. He advised the accused to change her clothes, which the accused proceeded to do. The deceased thereafter stretched herself. PW5 informed the accused that his wife was dead and that there was therefore no need to take her to hospital. The accused then asked PW5 to assist in taking the body to the mortuary.
34. PW5 further testified that he advised the accused to inform his family members. The accused gave him Ksh.1,000/-, after which PW5 asked him to contact him when it was time to take the body to the mortuary. PW5 then called Raphael, a neighbour, who came to the scene and also called his wife. A crowd subsequently gathered. PW5 stated that initially only the accused, his wife and the accused’s children were present. He later left on a journey. His house was approximately two kilometres from that of the accused.
35. PW5 described the deceased as having been dressed in a white biker and a maroon t-shirt. He identified the accused as the person in the dock.
36. In cross-examination, PW5 confirmed that the accused came to his home at about 5.00 a.m. seeking assistance to take his wife to hospital. He stated that when they reached the accused’s home, the deceased was dressed and alive. He reiterated that he advised the accused to change her clothes and that the accused complied. PW5 further stated that the accused had told him that he had fetched a cane and hit his wife in an attempt to make her speak, but without success, and that at about 5.00 a.m. he had called a passer-by to assist him in carrying his wife to his compound.
37. Upon clarification by the Court, PW5 confirmed that the accused had told him that at about 5.00 a.m. he called a passer-by to assist him in carrying his wife to his compound.
38. The sixth prosecution witness (PW6) was Dennis Otieno Gwai. He testified that he was a casual labourer residing at Nyakundu. He stated that on 10th November, 2022 at about 5.00 a.m., while on his way to work, he passed by the accused’s house. He greeted the accused, who called him over and informed him that he and his wife had been at a ceremony the previous day and that his wife had been unable to get home. When PW6 asked whether his wife had spent the night outside the house, the accused answered in the affirmative.
39. PW6 testified that the accused then used the light from his mobile phone to illuminate the path as they proceeded to a place where the accused said his wife was sleeping. Upon reaching the place, the accused shone the light on the ground and PW6 saw the deceased, Aoko. He described her condition as being bad and stated that he initially thought that she had suffered from exposure to the cold.
40. The witness further testified that the accused requested him to assist in taking his wife to the house. PW6 assisted by holding the deceased by the shoulders and they proceeded to the accused’s compound. They did not enter the house, as the accused stated that he would assist his wife into the house himself. PW6 advised him to contact the deceased’s brother, Omondi, who had a motorcycle, so as to assist in taking her to hospital. He stated that the deceased was unable to walk.
41. PW6 testified that later that evening he received information that a person had killed his wife. He was subsequently contacted by Jacob Ogadi, the Assistant Chief, who informed him that he had received information that PW6 had assisted someone to take his wife to his house. PW6 thereafter went and recorded a statement. He identified the accused as the person whom he had assisted in taking his wife to the compound. He stated that the deceased was dressed in a long cloth, although he could not recall its colour.
42. In cross-examination, PW6 confirmed that the accused called upon him at about 5.00 a.m. while he was on his way to work and requested his assistance in taking his wife to the compound. He maintained that the deceased was alive at the time. He stated that he knew the accused and the deceased well and that both had been drinking chang’aa. He further confirmed that when he left the accused, the deceased was still alive and that he had advised the accused to seek further assistance.
43. The seventh prosecution witness (PW7), although erroneously recorded in the proceedings as PW8, was Christine Auma Otieno, a thirteen-year-old pupil at Nyakunguru Primary School, where she was in Grade 6. Before giving evidence, the Court conducted a voire dire examination in Dholuo and found that the witness understood the duty to tell the truth and possessed sufficient intelligence to give sworn testimony. She thereafter testified on oath.
44. PW7 testified that on 9th November, 2022 she returned from school at about 5.00 p.m. and met her mother, who instructed her to go home. At home she found her siblings, Jacob and Philister. She stated that Jacob subsequently went to the shopping centre, where he met their mother, who gave him some foodstuff. They thereafter prepared dinner. Before they finished cooking, their father arrived and went to sleep. They did not eat immediately because they were waiting for their mother to return.
45. The witness stated that at about 10.00 to 11.00 p.m., their father woke up and went in search of their mother. Shortly thereafter, she heard her mother calling for help. She also heard their neighbour, Musa, saying that her mother and father were fighting. She stated that she was outside the house with her brother Jacob, but they subsequently entered the house and went to sleep.
46. PW7 further testified that at about 5.00 a.m., her father returned home and asked her where medicine for stomach problems was kept. She did not respond, whereupon he searched for the medicine himself and, upon finding it, left the house. About twenty minutes later, he returned, took maize flour, mixed it with water and said that he was taking it to their mother. He later returned and dressed in a sweater, after which they continued sleeping.
47. The witness stated that at about 6.00 a.m., she and her siblings went outside and found their mother lying beside the house. Her father informed her that he was going to look for Bishop to assist in taking their mother to hospital. At about 6.30 a.m., her father returned with Bishop, who told him that her mother was seriously injured and could not be taken to hospital.
48. PW7 stated that her mother subsequently died. She further testified that the police were called and, upon conducting a search, found bhang in a gap between the wall and the roof.
49. PW7 described her mother as being in a very bad state and stated that she was wearing a pink blouse and a brown skirt. She identified her father as Jared Otieno alias Abuya, whom she pointed out as the person in the dock.
50. In cross-examination, PW7 stated that when she met her mother after school, her mother instructed her to go home and that she did not see her mother again until the following morning. She stated that her father came home at about 7.00 p.m., asked where her mother was and thereafter went to sleep. When he woke up at about 10.00 p.m., he again asked about her mother’s whereabouts. She stated that there was no fight between her father and mother that day and that she only later heard from Anguro that her parents had been fighting.
51. The witness confirmed that she heard her father return home and that they all slept before waking up in the morning when her father searched for the medicine. She maintained that this occurred at about 5.00 a.m. She further stated that her father went to seek help after bringing her mother home. She heard Bishop say that he could not take her mother to hospital, although Bishop was the person who had arrived with a vehicle to assist her mother.
52. In re-examination, PW7 reiterated that Bishop had said that her mother could not be taken to hospital.
53. In response to a question from the Court, PW7 again stated that Bishop had said that her mother was badly injured and could not be taken to hospital.
54. PW8 (referred to in the proceedings as PW9), Dr. Bernadette Patroba Achieng, a medical officer of health testified and told the court that she conducted a post mortem on the body of Carolyne Aoko Onyango on 16th November, 2022 at Ahero County Hospital.
55. The witness stated that the deceased was a middle-aged African female, approximately 30 to 45 years old, of good nutrition and built physique, measuring 163 centimetres in height. The body had been embalmed and was presented for examination without clothing. She observed multiple bruises on the face, thighs and left leg, as well as blood stains on the back. There were no obvious scars on the head, while the other body systems were generally normal.
56. On examination of the head, PW8 found a haematoma on the skull involving the left frontal, parietal and occipital regions and a linear fracture on the left parietal region. Examination of the brain revealed approximately 20 millilitres of clotted blood on the cerebral cortex, left hemisphere.
57. She testified that the cause of death was as a result of head injury with intracerebral haemorrhage secondary to blunt force trauma to the head. She completed the post mortem report, which she produced PExh 3 and stated that a death certificate bearing number 1099639 had been issued.
58. In cross-examination, PW8 confirmed that the post-mortem examination was conducted about five days after death and that the body had been embalmed. She explained that embalming could interfere with toxicological examination and confirmed that no toxicological tests had been conducted. She stated that there were no obvious physical scars on the head and that the significance of an impact depended on the resulting pathology.
59. When shown the photographs marked PMFI 2, PW8 stated that they depicted sticks of different sizes. She explained that although the sticks appeared small, they could cause trauma depending on the pathology of the deceased. She did not observe any pre-existing medical condition. She reiterated that the deceased had sustained a blow to the head which resulted in internal bleeding and a haematoma of the skull, although she had not observed any external injury to the head.
60. In re-examination, PW8 explained that the effects of embalming could be distinguished from other findings. She stated that although there was no swelling visible externally on the head, the examination revealed a haematoma on the skull and in the brain tissue. In her opinion, the haematoma on the skull demonstrated that the skull had sustained trauma.
61. The ninth prosecution witness (PW9), although erroneously recorded in the proceedings as PW10, was David Omondi Mirera, a boda boda rider residing in Muhoroni Sub-County. He testified that on 10th November, 2022 at about 8.00 a.m., he was at Nyakungu Centre with his fellow boda boda riders when some women approached him and asked him to go to his sister’s home. His sister was Carolyne Aoko. He stated that he then saw other women screaming and immediately proceeded to his sister’s home.
62. PW9 testified that upon arrival, he found a number of people at the homestead. He entered the house and found the deceased’s husband, Jared Otieno Otieno, present. His sister was lying in the living room and was already dead. He observed bruises on her hand. He thereafter called the police at Chemelil Police Station, whereupon police officers arrived in two vehicles and took the body to the mortuary.
63. The witness further testified that on 16th November, 2022 he attended the post-mortem examination at Ahero Sub-County Hospital in the company of his uncle, George Omondi. He identified the accused, Jared Otieno, as the person in the dock. He stated that the accused and the deceased had four children and that three of the children were at home when the deceased died.
64. In cross-examination, PW9 confirmed that the deceased had already died by the time he arrived at the homestead.
65. The tenth prosecution witness (PW10) (erroneously recorded in the proceedings as PW11), was Assistant Superintendent of Police Abel Onyapudi, a trained crime scene investigations officer attached to the Kakamega Crime Scene Investigations Office. He testified that he was gazetted as a crime scene investigations officer under Gazette Notice No. 5548 of 30th June, 2015.
66. PW10 testified that on 18th May, 2023 at about 12.51 p.m., while at the Kisumu DCI Offices, he received a memory card from Police Constable Alvin Kinyua of DCI Muhoroni, with a request that he process the memory card and prepare photographic printouts. He processed the memory card and prepared six photographic printouts, which he signed and stamped on the reverse. He identified them as PMFI 2(a) to (f).
67. The officer stated that the photographs were not monitored in any way during the process of preparation. He also prepared a certificate dated 18th May, 2023, which he produced as PExh 4, together with the six photographs as PExh 2(a) to (f).
68. In cross-examination, PW10 confirmed that he was not the person who took the photographs and did not know where they had been taken. He further acknowledged that he had not produced the documentation identifying the person who forwarded the memory card to him or the person to whom it was returned. He also confirmed that he had not attached a certificate of manufacture of the machine used to print the photographs.
69. The eleventh prosecution witness (PW11), although erroneously recorded in the proceedings as PW12, was Police Constable Alvin Kinyua, attached to DCI Muhoroni. He testified that he was the investigating officer in the case. He stated that on 10th December, 2022 at about 8.00 a.m., his in-charge, Chief Inspector of Police Cosmas, instructed him to attend to a murder scene at Sidho East 1 Sub-location, Nyakunguru Village, following information received from the local administration. He proceeded to the home of Jared Otieno alias Abuya, whom he identified as the accused, and found police officers at the scene with the accused already handcuffed.
70. PW11 testified that they were led to the family house where they found the lifeless body of Carolyne Aoko lying on the ground immediately inside the doorway. The body was dressed and had slight injuries, particularly on the back. He stated that they were thereafter led by the accused to the suspected scene of the murder, approximately 30 metres from the homestead, beside a road in a freshly harvested sugarcane plantation which had begun to regenerate. The ground was wet and appeared disturbed, with signs of recent movement. He observed several broken fresh sticks scattered at the scene, which he collected and marked as PMFI 1.
71. The witness further testified that he recovered a black strap, which he suspected had been torn from a brassiere, and marked it PMFI 5. In his view, the scene appeared as though there had been a struggle. He interviewed the accused at the scene and took photographs thereof. He thereafter proceeded to the accused’s kitchen, where he recovered a grey skirt, marked PMFI 6, which was soiled and dirty; a maroon t-shirt, marked PMFI 7, which was wet and soiled; a brown biker, marked PMFI 8, which was wet; and a pink panty, marked PMFI 9, which was also wet. He stated that the kitchen appeared disorganised and disturbed.
72. PW11 testified that they then went to the living room where the deceased was lying and recovered a black bra without one strap, marked PMFI 10, which was found under a bed. He also recovered a blue long-sleeved shirt, marked PMFI 11, which was stained and dirty. The witness stated that they learnt from the accused and other witnesses that the accused had been wearing the shirt the previous day.
73. According to the witness, the accused had changed the deceased’s clothes and the clothes she was wearing when they found her were not the clothes she had been wearing when she was allegedly assaulted.
74. The witness stated that an inventory dated 10th December, 2022 was prepared and signed by the accused, Jacob Omondi, the Assistant Chief, Chief Inspector Cosmas, Police Constable Anderson Odhiambo and himself. He produced the inventory as PExh 12.
75. The witness further testified that the accused was taken to Chemelil Police Station and that the police sought custodial orders in Tamu Miscellaneous Application No. E025 of 2022, the application being produced as PExh 13(a) and the order signed on 11th November, 2022 as PExh 13(b). The accused was thereafter remanded at Koru Police Station to allow for further investigations.
76. PW11 testified that the deceased’s body was taken to Ahero Hospital Mortuary and that a post-mortem examination was conducted on 16th November, 2022. He stated that some witnesses had seen what transpired before the deceased died and that the deceased was the accused’s spouse. He produced the recovered items, namely the sticks as PExh 1; the black strap as PExh 5; the grey skirt as PExh 6; the maroon t-shirt as PExh 7; the brown biker as PExh 8; the pink panty as PExh 9; the black bra as PExh 10; the blue shirt as PExh 11; the inventory as PExh 12; the miscellaneous application as PExh 13(a); and the court order as PExh 13(b). He also produced a leso recovered from the sitting room as PExh 14. He explained that the exhibits were not subjected to further examination because there were no blood stains and the deceased was not bleeding.
77. In cross-examination, PW11 confirmed that there were no blood stains on the body, at the scene or on the recovered clothes. He confirmed that the deceased and the accused were husband and wife and stated that he did not know whether either of them were habitual drinkers. He was unable to establish whether the deceased was naked at about 10.00 p.m. the previous night. He stated that, apart from the blue shirt, the clothing items recovered belonged to a woman and were all soiled, although he did not observe any blood stains.
78. PW11 further acknowledged that, according to the witnesses, the accused had sought a vehicle to take the deceased to hospital in the morning and had asked for assistance in moving her from the scene to his house. He referred to the ev
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1. Vide the information dated 23rd November, 2022, Jared Otieno Otieno, the accused person herein, is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, Cap 63 Laws of Kenya.
2. It is alleged in the particulars of the offence that on diverse dates between the 9th and 10th days of November, 2022 at Nyalenya village, Muhoroni Subcounty within Kisumu County, the accused person murdered Caroline Aoko Onyango.
3. The accused person denied the charge and a plea of “not guilty” was entered, following which his trial commenced.
B. THE PROSECUTION CASE.
4. The prosecution called a total of eleven (11) witnesses.
5. The first prosecution witness (PW1) was Musa Opamo. The witness testified and told the court that he was a resident of Chemilil area in Kisumu County and worked as a casual labourer.
6. PW1 testified that on 9th November, 2023 at about 10.30 p.m., while at his home, he heard people talking near his residence. He moved closer to the source of the voices and recognized one of them. He proceeded to the place from which the voices emanated, where he found the accused, Obuya, together with his wife, Carolyne. He stated that Carolyne was seated while the accused was standing.
7. The witness told the court that Carolyne was dressed only in a petticoat. He therefore asked the accused to go and get her some clothes. After some time, Kennedy Omondi, who was his neighbour, arrived at the scene. PW1 then returned to his home and went to sleep. The following morning, he received information that Carolyne had died.
8. PW1 further testified that Carolyne used to sell him goods on credit. He stated that when he found her seated at the scene, he did not observe anything unusual on her body. He also told the court that he had no dispute with the accused, who had recently moved into the neighbourhood and constructed a house there. He did not know the accused’s full names. His home was approximately 45 metres from the place where he found the accused and Carolyne.
9. In cross-examination, PW1 confirmed that he heard the noises at about 10.30 p.m. and that his house was situated at a corner, approximately 45 metres from the accused’s house. He stated that at the material time he was on a road near a sugarcane farm. He reiterated that he found Carolyne seated and half naked, wearing only a petticoat. He further stated that Carolyne told him that it was the accused who had undressed her. PW1 explained that the scene was situated between his home and that of the accused and that it was because Carolyne was dressed only in a petticoat that he asked the accused to get her some clothes.
10. The second prosecution witness (PW2) was Kennedy Omondi. He testified that he was a casual labourer and a resident of Chemelil. He stated that on 9th November 2022 at about 9.30 p.m., he had gone to a shop approximately 100 metres from his home to buy foodstuff. On his way back, he met the accused, Abuya, and his wife, Carolyne. As he approached them, they got up and proceeded to their house.
11. PW2 testified that at about 10.30 p.m., he heard some noise and proceeded towards the direction from which it came. He found the accused and Carolyne fighting. When he asked them what the problem was, the accused told him not to involve himself in their family affairs. PW2 nevertheless observed that the two were standing and striking each other with canes or sticks. He attempted to intervene and talk to the accused, but the accused refused to listen and again told him not to involve himself in their affairs.
12. The witness further testified that he encountered PW1, Musa Opamo, also known as Ngurunguru, at the scene. He stated that PW1 remained at the scene during the fight but subsequently left. PW2 also told the court that his house was approximately 10 metres from that of the accused. He recorded a statement at Chemelil Police Station after his name was mentioned to the police. He stated that he did not know who had mentioned his name as he had been away undertaking his casual work.
13. During cross-examination, PW2 stated that he had met the accused and Carolyne at about 9.30 a.m. while they were heading towards their home. He clarified that he heard the noise at about 10.00 p.m. and, upon reaching the scene, found PW1 there. He confirmed that both the accused and Carolyne appeared to be drunk. He further stated that it was the accused, and not Carolyne, who told him to leave them alone. PW1 left the scene first, and PW2 left approximately five minutes later. At the time he left, both the accused and Carolyne were alive. He stated that the two were using sticks in the fight and not wooden plant stems.
14. When shown some sticks contained in a sack, PW2 stated that he could not tell whether they were the same sticks which the accused and Carolyne had used during the fight.
15. The third prosecution witness (PW3) was Patrick Owiti Oketch. The witness testified that he was a farmer and the village elder of Kamwara. He stated that on 10th November, 2022 at about 8.00 a.m., while at the shopping centre, he received a report from Teresa Achieng that something had happened at the home of the accused, Jared Otieno Otieno. He proceeded to the homestead where he found Carolyne, the accused’s wife, lying on the ground.
16. PW3 testified that there was a crowd at the homestead and that those present informed him that Carolyne was dead and that she and the accused had fought the previous night. He left the house together with about four persons who were present and, outside the house, they came upon a muddy area bearing visible signs of a stampede. They also found several sticks at the scene.
17. The witness stated that he thereafter called Jacob Ongadi, the Assistant Chief, who arrived at the scene accompanied by police officers. The police took Carolyne’s body to Ahero Mortuary, while the accused was arrested. PW3 further testified that he had known the accused for some time as they were from the same village and that, at the material time, the accused was within the homestead.
18. PW3 was shown a number of sticks contained in a sack and identified them as the same sticks that he had seen at the scene. He explained that the sticks were wet when he first saw them but had since dried. The sticks were consequently marked as PMFI-1.
19. PW3 further testified that upon observing Carolyne’s body, he noticed cuts on her back.
20. In cross-examination, PW3 stated that he arrived at the homestead shortly after 8.00 a.m. and that the shopping centre was not far from the scene. He acknowledged that he could not tell where exactly the incident had occurred or whether the sticks he found at the scene had been used in the commission of any offence, as he had not been present when the alleged offence was committed. He nevertheless maintained that the sticks produced in court were the same ones he had seen at the scene. He conceded that there was nothing unique about the sticks.
21. The fourth prosecution witness (PW4) was Jacob Omondi Ogadi. He testified that he was the Assistant Chief of Sidoh East Sub-location and had served in that capacity for 23 years. He stated that on 10th November, 2022, he received a telephone call from his colleague, Bernard Okoth Ongadi, informing him that someone had killed his wife along their common border. PW4 thereafter contacted Patrick Owiti Oketch, one of the village elders, who confirmed that a woman had been killed.
22. PW4 testified that he contacted officers at Chemelil Police Station, who informed him that they had already received the report. He proceeded to the scene and was joined by police officers from Chemelil Police Station. Upon arrival, he found the deceased, Carolyne Aoko, lying on the floor of the living room in the home of the accused, Jared Otieno. The accused was also present in the house.
23. PW4 further testified that the accused was questioned by himself and the police officers and subsequently led them to a place approximately 20 metres from his house. According to PW4, the accused indicated that it was at that place that he had been beating his wife. The village elder and members of the public were also present at the scene. PW4 stated that he found a bunch of sticks at the place which, according to him, were the sticks used by the accused to beat the deceased.
24. The witness stated that when they returned to the house, they found the deceased’s clothes, namely a t-shirt, skirt and biker, stained with blood. A leso was also bloodstained. The accused was arrested and taken to Chemelil Police Station, while the deceased’s body was removed to the mortuary.
25. PW4 identified the accused as one of his residents. He testified that the accused and the deceased appeared to have had a good relationship and would ordinarily go to the market together. He stated that he had never received any complaint concerning the couple. He further testified that the accused did not disclose to him the cause of the fight.
26. PW4 was shown a number of photographs which he identified as depicting the sticks he had seen at the scene. The photographs were marked collectively as PMFI-2.
27. In cross-examination, PW4 acknowledged that he was not present when the fight occurred. He stated that the accused had admitted to beating his wife. He further acknowledged that there were other sticks lying on the ground and that some of the photographs depicted different areas of the ground, including a stick lying in a napier plantation and another photograph showing churned ground.
28. PW4 confirmed that he had not been shown the deceased’s clothes in court. He maintained that the accused and the deceased had enjoyed a healthy relationship. He added that although the accused was a heavy drinker, the deceased was not.
29. The fifth prosecution witness (PW5) was Jared Otieno Opiyo. He testified that he was a farmer and preacher residing in Sidoh East 2. He stated that on 10th November, 2022 at about 5.30 a.m., he heard dogs barking and was informed by one of his children, Merisa Adoh, that there was a visitor outside. He went outside and found the accused, Abuya, who requested him to assist in taking his wife to hospital at Catholic Awasi.
30. PW5 testified that he informed the accused that his vehicle had no fuel and requested Ksh.2,000/- for fuel. The accused stated that he had no money but undertook to obtain some thereafter. PW5 nevertheless took his vehicle and accompanied the accused towards his home. On the way, he asked the accused when his wife had become ill.
31. According to PW5, the accused told him that on 9th November, 2022, he and his wife had been returning from work on a motorcycle and that his wife had been entrusted with money for payment of workers. They had gone to Nyakunguru Centre, where his wife left him at about 8.30 p.m. The accused stated that he returned home at about 10.00 p.m. and did not find his wife there. Upon enquiring from his children, he was informed that she had not returned home.
32. PW5 further testified that the accused told him that he went out to look for his wife and, having heard her voice, approached her but found that she could not speak. The accused allegedly stated that he thought she was pretending and consequently took a stick and beat her, but she did not respond. He further told PW5 that at about 5.00 a.m. he saw a person passing by whom he called upon to assist him in carrying his wife to the house. The accused also stated that he suspected that his wife had been attacked and raped.
33. PW5 testified that upon reaching the accused’s home, he found the deceased lying on the ground, covered in blood and mud, and covered with a blanket. He advised the accused to change her clothes, which the accused proceeded to do. The deceased thereafter stretched herself. PW5 informed the accused that his wife was dead and that there was therefore no need to take her to hospital. The accused then asked PW5 to assist in taking the body to the mortuary.
34. PW5 further testified that he advised the accused to inform his family members. The accused gave him Ksh.1,000/-, after which PW5 asked him to contact him when it was time to take the body to the mortuary. PW5 then called Raphael, a neighbour, who came to the scene and also called his wife. A crowd subsequently gathered. PW5 stated that initially only the accused, his wife and the accused’s children were present. He later left on a journey. His house was approximately two kilometres from that of the accused.
35. PW5 described the deceased as having been dressed in a white biker and a maroon t-shirt. He identified the accused as the person in the dock.
36. In cross-examination, PW5 confirmed that the accused came to his home at about 5.00 a.m. seeking assistance to take his wife to hospital. He stated that when they reached the accused’s home, the deceased was dressed and alive. He reiterated that he advised the accused to change her clothes and that the accused complied. PW5 further stated that the accused had told him that he had fetched a cane and hit his wife in an attempt to make her speak, but without success, and that at about 5.00 a.m. he had called a passer-by to assist him in carrying his wife to his compound.
37. Upon clarification by the Court, PW5 confirmed that the accused had told him that at about 5.00 a.m. he called a passer-by to assist him in carrying his wife to his compound.
38. The sixth prosecution witness (PW6) was Dennis Otieno Gwai. He testified that he was a casual labourer residing at Nyakundu. He stated that on 10th November, 2022 at about 5.00 a.m., while on his way to work, he passed by the accused’s house. He greeted the accused, who called him over and informed him that he and his wife had been at a ceremony the previous day and that his wife had been unable to get home. When PW6 asked whether his wife had spent the night outside the house, the accused answered in the affirmative.
39. PW6 testified that the accused then used the light from his mobile phone to illuminate the path as they proceeded to a place where the accused said his wife was sleeping. Upon reaching the place, the accused shone the light on the ground and PW6 saw the deceased, Aoko. He described her condition as being bad and stated that he initially thought that she had suffered from exposure to the cold.
40. The witness further testified that the accused requested him to assist in taking his wife to the house. PW6 assisted by holding the deceased by the shoulders and they proceeded to the accused’s compound. They did not enter the house, as the accused stated that he would assist his wife into the house himself. PW6 advised him to contact the deceased’s brother, Omondi, who had a motorcycle, so as to assist in taking her to hospital. He stated that the deceased was unable to walk.
41. PW6 testified that later that evening he received information that a person had killed his wife. He was subsequently contacted by Jacob Ogadi, the Assistant Chief, who informed him that he had received information that PW6 had assisted someone to take his wife to his house. PW6 thereafter went and recorded a statement. He identified the accused as the person whom he had assisted in taking his wife to the compound. He stated that the deceased was dressed in a long cloth, although he could not recall its colour.
42. In cross-examination, PW6 confirmed that the accused called upon him at about 5.00 a.m. while he was on his way to work and requested his assistance in taking his wife to the compound. He maintained that the deceased was alive at the time. He stated that he knew the accused and the deceased well and that both had been drinking chang’aa. He further confirmed that when he left the accused, the deceased was still alive and that he had advised the accused to seek further assistance.
43. The seventh prosecution witness (PW7), although erroneously recorded in the proceedings as PW8, was Christine Auma Otieno, a thirteen-year-old pupil at Nyakunguru Primary School, where she was in Grade 6. Before giving evidence, the Court conducted a voire dire examination in Dholuo and found that the witness understood the duty to tell the truth and possessed sufficient intelligence to give sworn testimony. She thereafter testified on oath.
44. PW7 testified that on 9th November, 2022 she returned from school at about 5.00 p.m. and met her mother, who instructed her to go home. At home she found her siblings, Jacob and Philister. She stated that Jacob subsequently went to the shopping centre, where he met their mother, who gave him some foodstuff. They thereafter prepared dinner. Before they finished cooking, their father arrived and went to sleep. They did not eat immediately because they were waiting for their mother to return.
45. The witness stated that at about 10.00 to 11.00 p.m., their father woke up and went in search of their mother. Shortly thereafter, she heard her mother calling for help. She also heard their neighbour, Musa, saying that her mother and father were fighting. She stated that she was outside the house with her brother Jacob, but they subsequently entered the house and went to sleep.
46. PW7 further testified that at about 5.00 a.m., her father returned home and asked her where medicine for stomach problems was kept. She did not respond, whereupon he searched for the medicine himself and, upon finding it, left the house. About twenty minutes later, he returned, took maize flour, mixed it with water and said that he was taking it to their mother. He later returned and dressed in a sweater, after which they continued sleeping.
47. The witness stated that at about 6.00 a.m., she and her siblings went outside and found their mother lying beside the house. Her father informed her that he was going to look for Bishop to assist in taking their mother to hospital. At about 6.30 a.m., her father returned with Bishop, who told him that her mother was seriously injured and could not be taken to hospital.
48. PW7 stated that her mother subsequently died. She further testified that the police were called and, upon conducting a search, found bhang in a gap between the wall and the roof.
49. PW7 described her mother as being in a very bad state and stated that she was wearing a pink blouse and a brown skirt. She identified her father as Jared Otieno alias Abuya, whom she pointed out as the person in the dock.
50. In cross-examination, PW7 stated that when she met her mother after school, her mother instructed her to go home and that she did not see her mother again until the following morning. She stated that her father came home at about 7.00 p.m., asked where her mother was and thereafter went to sleep. When he woke up at about 10.00 p.m., he again asked about her mother’s whereabouts. She stated that there was no fight between her father and mother that day and that she only later heard from Anguro that her parents had been fighting.
51. The witness confirmed that she heard her father return home and that they all slept before waking up in the morning when her father searched for the medicine. She maintained that this occurred at about 5.00 a.m. She further stated that her father went to seek help after bringing her mother home. She heard Bishop say that he could not take her mother to hospital, although Bishop was the person who had arrived with a vehicle to assist her mother.
52. In re-examination, PW7 reiterated that Bishop had said that her mother could not be taken to hospital.
53. In response to a question from the Court, PW7 again stated that Bishop had said that her mother was badly injured and could not be taken to hospital.
54. PW8 (referred to in the proceedings as PW9), Dr. Bernadette Patroba Achieng, a medical officer of health testified and told the court that she conducted a post mortem on the body of Carolyne Aoko Onyango on 16th November, 2022 at Ahero County Hospital.
55. The witness stated that the deceased was a middle-aged African female, approximately 30 to 45 years old, of good nutrition and built physique, measuring 163 centimetres in height. The body had been embalmed and was presented for examination without clothing. She observed multiple bruises on the face, thighs and left leg, as well as blood stains on the back. There were no obvious scars on the head, while the other body systems were generally normal.
56. On examination of the head, PW8 found a haematoma on the skull involving the left frontal, parietal and occipital regions and a linear fracture on the left parietal region. Examination of the brain revealed approximately 20 millilitres of clotted blood on the cerebral cortex, left hemisphere.
57. She testified that the cause of death was as a result of head injury with intracerebral haemorrhage secondary to blunt force trauma to the head. She completed the post mortem report, which she produced PExh 3 and stated that a death certificate bearing number 1099639 had been issued.
58. In cross-examination, PW8 confirmed that the post-mortem examination was conducted about five days after death and that the body had been embalmed. She explained that embalming could interfere with toxicological examination and confirmed that no toxicological tests had been conducted. She stated that there were no obvious physical scars on the head and that the significance of an impact depended on the resulting pathology.
59. When shown the photographs marked PMFI 2, PW8 stated that they depicted sticks of different sizes. She explained that although the sticks appeared small, they could cause trauma depending on the pathology of the deceased. She did not observe any pre-existing medical condition. She reiterated that the deceased had sustained a blow to the head which resulted in internal bleeding and a haematoma of the skull, although she had not observed any external injury to the head.
60. In re-examination, PW8 explained that the effects of embalming could be distinguished from other findings. She stated that although there was no swelling visible externally on the head, the examination revealed a haematoma on the skull and in the brain tissue. In her opinion, the haematoma on the skull demonstrated that the skull had sustained trauma.
61. The ninth prosecution witness (PW9), although erroneously recorded in the proceedings as PW10, was David Omondi Mirera, a boda boda rider residing in Muhoroni Sub-County. He testified that on 10th November, 2022 at about 8.00 a.m., he was at Nyakungu Centre with his fellow boda boda riders when some women approached him and asked him to go to his sister’s home. His sister was Carolyne Aoko. He stated that he then saw other women screaming and immediately proceeded to his sister’s home.
62. PW9 testified that upon arrival, he found a number of people at the homestead. He entered the house and found the deceased’s husband, Jared Otieno Otieno, present. His sister was lying in the living room and was already dead. He observed bruises on her hand. He thereafter called the police at Chemelil Police Station, whereupon police officers arrived in two vehicles and took the body to the mortuary.
63. The witness further testified that on 16th November, 2022 he attended the post-mortem examination at Ahero Sub-County Hospital in the company of his uncle, George Omondi. He identified the accused, Jared Otieno, as the person in the dock. He stated that the accused and the deceased had four children and that three of the children were at home when the deceased died.
64. In cross-examination, PW9 confirmed that the deceased had already died by the time he arrived at the homestead.
65. The tenth prosecution witness (PW10) (erroneously recorded in the proceedings as PW11), was Assistant Superintendent of Police Abel Onyapudi, a trained crime scene investigations officer attached to the Kakamega Crime Scene Investigations Office. He testified that he was gazetted as a crime scene investigations officer under Gazette Notice No. 5548 of 30th June, 2015.
66. PW10 testified that on 18th May, 2023 at about 12.51 p.m., while at the Kisumu DCI Offices, he received a memory card from Police Constable Alvin Kinyua of DCI Muhoroni, with a request that he process the memory card and prepare photographic printouts. He processed the memory card and prepared six photographic printouts, which he signed and stamped on the reverse. He identified them as PMFI 2(a) to (f).
67. The officer stated that the photographs were not monitored in any way during the process of preparation. He also prepared a certificate dated 18th May, 2023, which he produced as PExh 4, together with the six photographs as PExh 2(a) to (f).
68. In cross-examination, PW10 confirmed that he was not the person who took the photographs and did not know where they had been taken. He further acknowledged that he had not produced the documentation identifying the person who forwarded the memory card to him or the person to whom it was returned. He also confirmed that he had not attached a certificate of manufacture of the machine used to print the photographs.
69. The eleventh prosecution witness (PW11), although erroneously recorded in the proceedings as PW12, was Police Constable Alvin Kinyua, attached to DCI Muhoroni. He testified that he was the investigating officer in the case. He stated that on 10th December, 2022 at about 8.00 a.m., his in-charge, Chief Inspector of Police Cosmas, instructed him to attend to a murder scene at Sidho East 1 Sub-location, Nyakunguru Village, following information received from the local administration. He proceeded to the home of Jared Otieno alias Abuya, whom he identified as the accused, and found police officers at the scene with the accused already handcuffed.
70. PW11 testified that they were led to the family house where they found the lifeless body of Carolyne Aoko lying on the ground immediately inside the doorway. The body was dressed and had slight injuries, particularly on the back. He stated that they were thereafter led by the accused to the suspected scene of the murder, approximately 30 metres from the homestead, beside a road in a freshly harvested sugarcane plantation which had begun to regenerate. The ground was wet and appeared disturbed, with signs of recent movement. He observed several broken fresh sticks scattered at the scene, which he collected and marked as PMFI 1.
71. The witness further testified that he recovered a black strap, which he suspected had been torn from a brassiere, and marked it PMFI 5. In his view, the scene appeared as though there had been a struggle. He interviewed the accused at the scene and took photographs thereof. He thereafter proceeded to the accused’s kitchen, where he recovered a grey skirt, marked PMFI 6, which was soiled and dirty; a maroon t-shirt, marked PMFI 7, which was wet and soiled; a brown biker, marked PMFI 8, which was wet; and a pink panty, marked PMFI 9, which was also wet. He stated that the kitchen appeared disorganised and disturbed.
72. PW11 testified that they then went to the living room where the deceased was lying and recovered a black bra without one strap, marked PMFI 10, which was found under a bed. He also recovered a blue long-sleeved shirt, marked PMFI 11, which was stained and dirty. The witness stated that they learnt from the accused and other witnesses that the accused had been wearing the shirt the previous day.
73. According to the witness, the accused had changed the deceased’s clothes and the clothes she was wearing when they found her were not the clothes she had been wearing when she was allegedly assaulted.
74. The witness stated that an inventory dated 10th December, 2022 was prepared and signed by the accused, Jacob Omondi, the Assistant Chief, Chief Inspector Cosmas, Police Constable Anderson Odhiambo and himself. He produced the inventory as PExh 12.
75. The witness further testified that the accused was taken to Chemelil Police Station and that the police sought custodial orders in Tamu Miscellaneous Application No. E025 of 2022, the application being produced as PExh 13(a) and the order signed on 11th November, 2022 as PExh 13(b). The accused was thereafter remanded at Koru Police Station to allow for further investigations.
76. PW11 testified that the deceased’s body was taken to Ahero Hospital Mortuary and that a post-mortem examination was conducted on 16th November, 2022. He stated that some witnesses had seen what transpired before the deceased died and that the deceased was the accused’s spouse. He produced the recovered items, namely the sticks as PExh 1; the black strap as PExh 5; the grey skirt as PExh 6; the maroon t-shirt as PExh 7; the brown biker as PExh 8; the pink panty as PExh 9; the black bra as PExh 10; the blue shirt as PExh 11; the inventory as PExh 12; the miscellaneous application as PExh 13(a); and the court order as PExh 13(b). He also produced a leso recovered from the sitting room as PExh 14. He explained that the exhibits were not subjected to further examination because there were no blood stains and the deceased was not bleeding.
77. In cross-examination, PW11 confirmed that there were no blood stains on the body, at the scene or on the recovered clothes. He confirmed that the deceased and the accused were husband and wife and stated that he did not know whether either of them were habitual drinkers. He was unable to establish whether the deceased was naked at about 10.00 p.m. the previous night. He stated that, apart from the blue shirt, the clothing items recovered belonged to a woman and were all soiled, although he did not observe any blood stains.
78. PW11 further acknowledged that, according to the witnesses, the accused had sought a vehicle to take the deceased to hospital in the morning and had asked for assistance in moving her from the scene to his house. He referred to the ev
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